Reuben, J.

(1) This appeal by defendant first party is directed against a decision of the Additional District Judge, Motihari, decreeing a suit for the redemption of a usufructuary mortgage.

(2) Plaintiffs first party are a joint Hindu family. Plaintiff second party and defendants second party are another joint Hindu family. The two joint families are the transferees of the rights of the mortgagor, and the right of the plaintiffs as transferees to sue for redemption is not challenged. Defendants appellants are the descendants of the mortgagee and are also a joint Hindu family. The mortgage in suit was executed on 14-10-1909 by Ramprasad Lal alias Ramprasad Singh in favour of Dhyan Singh to secure an advance of Rs. 6000/- at simple interest of 5 annas per cent, per annum for a term of five years from 1317 to 1321 Fasli, repayable in Bhado 1321 or any Bhado thereafter, The property mortgaged consisted of:

1. 1 a. 10 p. pokhta share of milkiat bearing Tauzi No. 699 and 6 p. pokhta share of milkiat bearing Tauzi No. 698 in mauza Madhubani, pargana Mahsi. These tauzis are described as having an annual rent roll of Rs. 293/9/0. They included in addition 3 bighas of zirat land described in schedule 3 to the plaint. 2. 8 B. 15 K. of zirat land in mauza Madhubani aforementioned, the rental value of which was taken to be Rs. 56/14.

(3) 3 kathas of sehan land in the town of Motihari. The deed provided that the income of the mortgaged property, Rs. 298/9 plus Rs. 56/14/- equal to Rs. 355/4, should, be applied by the mortgagee as follows: Interest at 5 per cent, per annum on Rs 6000/- ... Rs. 225- 0 0 Revenue and cess payable on account of the mortgaged property ... Rs. 114-12-0 Pay of pat wari and village expenses ... Rs. 15- 8-0 Reserved rent payable to the mortgagor ... Rs. 0- 3-0 Rs. 355- 7-0 Further, the bond recited that out of the item of 8 bighas 15 kathas zirat, the mortgagee had let 3 bighas 9 kathas to the mortgagor to be held by hi n for an annual rent of Rs. 22/8/- and in the event of non-payment

"the said creditor will be competent to realize the said amount Rs. 22/8/- principal besides interest at 12 per cent, per month through the Court from me the executant or my heirs and representatives year after year till the date of realisation year after year till the expiry of the term or the payment of the peshgi money."

(4) According to the plaintiffs, throughout the continuance of the mortgage, the reserved rent has not been paid. The plaintiffs also point out that no income was fixed by the mortgage bond in respect of the Schedule 3 property. They claim that the dues under the mortgage are more than covered by the income of the schedule 3 property and the arrears and interest of the reserved rent thus: Reserved rent from 1330 to 1351 Fasli and interest thereon ... Rs. 5- 2-0 Income from schedule 31 and 1330 to 1351 ... Rs. 8155-13.0 Rs. 8160-15.0 They therefore asked for a decree for recovery of possession of the property on the finding that the account given above is correct or failing that a preliminary decree for accounts. Regarding the property that was leased back they pleaded that the mortgagee did not put the mortgagor in possession of it, and it has remained in the possession of the mortgagee and his successors in interest throughout. The amount of the mortgage money Rs. 6000/- has been deposited under Section 83, Transfer of Property Act as a preliminary to the filing of this suit, and notice has been issued by the Court under that section and has been returned as served. It was pleaded that offers to make direct payment were put off from time to time and were finally refused in the following circumstances:

"Eventually in the month of Aghan 1351 Fasli the rehan money was tendered to the defendants 1st party and they were asked to render an account of the rehan money, But the defendants 1st party made illegal claim for the arrears of the hunda money in respect of the lands entered hereunder in schedule No. 5, for the days commencing from 14-10-1909 to 1350 Fasli besides interest at 2 per cent, per mensem as against these plaintiffs. The defendants 1st party refused to give the produce of the lands entered below in schedule No. 3, which they had been appropriating illegally and also the annual reserve rent in respect of 3 annas commencing from 1350 Fasli to these plaintiffs and having set off the dues as against the rehan money of Rs. 6000 refused to redeem the zarpeshgi deed dated 14-10-1909 in favour of these plaintiffs."

(5) The defence of the appellants omitting points not pressed in this Court was as follows. They admitted possession as mortgagees of the schedule 3 property and denied that the mortgagor or his successors-in-interest are entitled to recover anything on account of it. Further, they denied the correctness of the claim made on account of this land, They asserted that the reserved rent was paid to the mortgagor and his successors-in-interest. Regarding the 3 bighas 9 kathas, they asserted that it remained all along in the possession of the mortgagee and his successor-in-interest after him without payment of the rent reserved under the bond. They pleaded that they are entitled, to tack the dues in this respect to the mortgage dues and claimed on this account Rs. 4635 as principal and interest for the period 1317 to 1353. They pleaded that the amount of the annual rent roll was overstated by Rs. 23/7/6 by including in it two fictitious tenancies in the name of Harihar Chaube and on this account claimed Rs. 744/15/6 principal and interest for the period 1317 to 1353 Fasli. Further, they claimed an amount of Rs. 1100/-as principal and interest for the period 1327 to 1353 Fasli on the ground of an increase in annual cess from Rs. 114/12/0 as stated in the mortgage deed to Rs. 124/14/0, and a further amount of Rs. 196/3/6 for the period 1347 to 1353 Fasli as principal and interest on account of a reduction by proceedings under the Bihar Tenancy Act of Rs. 14/4/0 in the total annual rent payable by tenants. Finally, they denied direct tender of mortgage dues and challenged the sufficiency of the amount deposited under Section 83 and the validity of the service of the notice under that section. (ii) Although evidence was adduced before the Additional District Judge in support of the claim for account made by the parties, the defence claim was not pressed in argument and the defence lawyer conceded that his clients were not entitled to claim any amount in excess of Rs. 6000/-. In view of this the lawyer for the plaintiff did not press their claim for accounts and the Additional District Judge held the deposit of Rs. 6000/- to be sufficient. He also held that notice of the deposit was validly served. As regards the area of 3 bighas 9 kathas zirat he held that the mortgagee got possession of it and it has remained since then in his possession and that of his successors-in-interest. On this finding he had decreed the suit for redemption with mesne profits from the date of the deposit under Section 83.

(6) Mr. Sanyal contended before us on behalf of the appellants -- (1) that the deposit under Section 83 is insufficient, and (2) that the notice of the deposit was not validly served.

(7) Mr. Sharma has raised a preliminary objection to the first point. He contends that in view of the concession made by the appellants lawyer in the Court of the Additional District Judge, it is not open to them to re-open this point. There is no force in this contention. The point was in issue in the case and each party adduced evidence in support of its case. The concession made by the lawyer in the course of the argument represents his opinion as to the effect of the evidence. He felt that the evidence on his side did not establish his case and it would be better for his clients that he should concede the point -- as my review of the evidence will show his opinion was not unjustified. This concession was not intended to bind his clients in a later stage of the case and to prevent another lawyer, who might take a different view of the evidence, from re-opening the point in appeal, -- Bommadevara Venkata Narasimha Naidu v. Bhashyakarlu Naidu, 29 Ind App 76 (PC) (A), cited by Mr. Sharma has no application. In that case the issue was abandoned in the course of the recording of the evidence. In -- Kotayya v. Sreeramulu, AIR 1928 Mad 900 [LQ/MadHC/1927/334] (B), the concession which was held to be binding was made in the final court of fact. It was suggested that there is a circumstance in this case which raises an estoppel, namely, that in view of the concession, the plaintiffs lawyer did not press their claim for an account in respect of the Schedule 3 land and the reserved rent, and the plaintiffs have not filed a cross-objection in this Court. There is no force in this suggestion, if the appellants succeed in their contention and obtain an order for accounting, accounts will have to be taken of the entire income of the property and this will cover the Schedule 3 property and the reserved rent.

(8) In proof of the alleged increase in cess we have been referred to Ex. D. series, -- a number of chains showing the payment of cess mostly in respect of Tauzi No. 69S. In particular we have been referred to D. 89-91 in comparison with D 70-72, all relating to Tauzi No. 69

8. The details of these chalans are:

Year and KistRevenue Cess Total

Rs.Rs.Rs.

D89 June 191412.09.07.06.019 15-0

D90 January 191535.07.07.06.042.13.0

D91 March 191518 12.07.06.026.02.0

Total66.12.022.02.088.11.0

D71 January 193035.07.010.00.045.07.0

D72 March 193013.12.09.15.028.11.0

D70 June 193012.08.010.00.022.08.0

Total66.11.029.15.096.10.0

(9) The chalans, however, are obviously incomplete and relate mostly to Tauzi No. 69

8. From their contents it appears that there are 3 lasts. January, March and June. Payments made may be of revenue and cess at one time or of revenue alone e.g. Ext. D (8) or of cess alone Ex, D (73). From chalans D 39, D 40 and several others it would appear that the payments in respect of Tauzi No. 699 mention Tauzi No. 693. Also we find a tallying between chalans D 42 relating to Tauzi Nos. 698 and 699 and D (61) relating to Tauzi No. 698 alone which suggests that the payments in respect of the two Tauzis are made together. It is difficult to ascertain therefore for each year what payment has been made towards cess on account of these "Tauzis" and no attempt has been made by M. Sanyal to satisfy us that the payments represented by the chalans Ex. D (39)-D (91) cover the whole demand for cess for the year 1914-19

15. Hence it is not possible to hold that the higher realisation in the year 1930 represents an increase of cess. Our attention has been drawn generally to the chalans and it has been suggested that they show higher payments of cess in the later years than in the earlier ones. No attempt was mace in argument before us to ascertain from what year this increase occurs. There is perhaps a general increase, but the amount shown as paid from year to year varies and drops quite low even in later years. Thus for 1944 it is only Rs. 14/- and for 1939 only Rs. 16/2/-. If the chalans are not complete for these later years, what guarantee is there that they are complete for the earlier years According to para 17 of the written statement it appears that the cess was increased from 1347 Fasli. The figures certainly do not support such an increase. Had there really been an increase it could have easily been established by means of the cess revaluation schedules. I am therefore unable to accept the case of an increase in cess.

(10) After placing some evidence before us Mr. Sanyal frankly conceded that he was unable to press the defence case of loss of income by reduction of the rent of some of the tenants.

(11) Regarding overstating of the income of the mortgaged property by Rs. 23/7/G reliance is placed on the jamabandis. Exhibit A series, for the year 1317 Fasli purporting to be in the handwriting of Ramadahin, Lal Patwari and to he signed by Ramprasad Singh, the mortgagor. The evidence of Dundbahadur Singh (D. W. 1) is that these jama bandis were made over to the mortgagee by Ram Prasad Lal when the mortgage was executed. It is said that two tenancies with a total annual rental of Rs. 23/7/6 were shown in the jamabandis in the name of one Harihar Choube, though there was really no such tenancy. This is an allegation of fraud and the onus was very heavy on the defendants to prove it. The genuineness of these jamabandis is denied by the plaintiffs (vide Fakir Chand Singh, P.W. 8, and Durga Prasad Singh, P. W. 9), according to whom there was no tenant of the name of Harihar Chaube. The genuineness of the jamabandis depends entirely on the evidence of Magni Lal (D. W. 1) and Jagdeo Sahay (D.W. 6), who have no personal knowledge and merely identify the handwriting, and of Dundbahadur Singh, who is obviously an interested person. Bundbahadur says he begaa collections shortly after the mortgage. So the fraud must have come to light immediately. Yet he tells us that he took no step in the matter. He did not question Harihar Chaube -- for there was such an individual according to the defence. Nor did he give notice to the mortgagee or consult the previous collection papers. This conduct is not consistent with the truth of the defence case and I am unable to accept it.

(12) In view of this finding it is unnecessary to consider whether, by the failure to sue for the mortgage money under Section 68, Transfer of Property Act, the mortgagees can be held to have acquiesced in the diminution of their security (-- Raja Fertab Bahadur Singh v. Gajadher Baksh, 29 Ind App 143 (C); -- Jhunku Singh v. Chatkan Singh, 31 All 325 CD); .-- Uchait Mandar v. Gosain Singh Baid, AIR 1917 Pat 526 (E); and -- Uchit Mandar v. Gosain Singh Bald, AIR 1919 Pat 227 (F)).

(13) On the question of the possession of the 3 bighas 9 kathas of zirat land the Additional District Judge has taken the view that the oral evidence by itself is inconclusive. The Additional District Judge was in a better position than this Court to assess the value of that evidence, and his estimate of the evidence may be accepted as neither party before us has referred to the oral evidence. Mr. Sanyal has placed his reliance entirely on recitals in Exhibits K, K 3 and K 2, judgments in a criminal case under Sections147 and 424, I. P. C. In that case a number of persons including Kirit Narain Singh, plaintiff 5, was charged with being members of an unlawful assembly with the common object of removing paddy from the khalihan of Dundbahadur Singh, defendant 1. The motive alleged was that Kirit Singh and another accused person Nageshwar Singh went to Dundbahadur and wanted to redeem the mortgage, but Dundbahadur refused as they were not willing to pay "the annual rent of Rs. 22-8-0 that accrued to him from the time of securing the mortgage deed". The defence taken was that a false case was brought because Dundbahadur wanted

"to increase the annual rent of Rs. 22-8-0 for three bighas and odd in the possession of the accused Nageshwar Singh and Kiritnarain Singh or give up their possession over it which they refused."

It is not necessary to cite authority that an admission cannot be proved by a recital in a judgment. Apart from the fact that he was an accused person in the case, there is nothing to show that Kiritnarain Singh was a party to the defence taken. As against this we have two circumstances, namely, that the land is recorded in Ex. G, the Revisional settlement Khatian, as in the possession of the mortgagee, a fact also pleaded in the plaint, and not denied in the written statement, and that, although the bond contains specific provision for the mortgagee to realise the rent of Rs. 22-8-0 "through the Court....... .year by year", the mortgagees took no steps throughout this long period to do so. Dundbahadur deposes that he demanded rent once from Ramprasad and was assured by him that the entire dues would be paid at the time of redemption. Thereafter even after Ramprasad died and his estate was in the hands of a guardian appointed by the District Judge, Dimdbhadur did not make any demand for the payment of this rent. He tells us further that he did not even consult a lawyer as to how far he could rely on this oral assurance of Ramprasad. It is difficult to accept this evidence, and I see no reason to differ from the finding of the Additional District Judge that this area remained in the possession of the mortgagee.

(14) In this view of the facts it is not necessary to examine the contention of Mr. Sanyal that, in spite of the provision in the bond for realising the rent of Rs. 22/8 by suit, the money represents interest on the principal advanced and is "mortgage money" realisable by the defendants in this suit. The point is not free from difficulty. According to the definition in Clause(a) of Section 58 of the Transfer of Property Act mortgage money means "the principal money and interest of which payment is secured for the time being" and Clause(d) of the section, in defining a usufructuary mortgage, seems to draw a distinction between "mortgage money" and "interest" towards the satisfaction of which the mortgagee by the terms of the mortgage bond is authorized to appropriate the income of the mortgaged property. Here the mortgage bond provided a special means by which it was open to the mortgagee to realise the annual rent of Rs. 22/8/-. In the circumstances, can this amount be treated as "secured for the time being" In this connection a reference may also be made to Section 72 of the Transfer of property Act which authorizes a mortgagee to incur certain expenditure and "in the absence of a contract to the contrary" to add such money to the principal money at the rate of interest payable on the principal. Another provision to which reference may be made is contained in Clauses (b) and (g) of Section 16 of the Transfer of Property Act requiring a mortgagee in possession of the mortgaged property to use his best endeavours to collect the rents and profits thereof and to account for all sums received and spent by him as a mortgagee. The last paragraph of the section provides that if the mortgagee fails to perform any of the duties imposed upon him by the section, he may, when accounts are taken in pursuance of a decree made under Chapter IV of the Act, be debited with loss, if any, occasioned by such failure. Having regard to this provision, can the mortgagee, who has failed to take advantage of the procedure expressly provided by the mortgage bond for the realization of the rent of Rs. 22/8/-, be allowed now to realise the amount as mortgage money Another question that will arise is whether the provisions contained in the mortgage bond will not bring the transaction within the mischief of Section 77 of the Transfer of Property Act.

(15) Mr. Sanyal has referred to several decisions in support of his contention, but I do not think that they are conclusive. In -- Bhabani Charan v. Kadambini Dasi, AIR 1929 Cal 304 [LQ/CalHC/1928/209] (G), the mortgagee, by the terms of the mortgage bond, was empowered to recover deficit interest by instituting a suit for sale of the property, that is to say, the interest was "secured". Varadarajulu Chetty v. Dhanalakshmi AmmaP, AIR 1915 Mad 402 (H) and -- Nadershaw Sheriarji T. Shirinbai Bapuji, AIR 1924 Bom 264 [LQ/BomHC/1923/72] (I) are authorities that Section 72 of the Transfer of Property Act is not exhaustive of the circumstances in which tacking may be done. They relate to costs properly incurred in defending the mortgaged property and the tacking was allowed to be done on equitable considerations. The case before us is not a case of expenditure incurred, still less expenditure properly incurred. Here the mortgage bond contained an express provision under which the mortgagee could have realised the annual rent of Rs. 22/8/- but he has failed to take advantage of this provision. In the circumstances, no equity arises in his favour. Imad Husan Khan v. Badri Prasad, 20 All 401 (J), at first sight supports the contention of Mr. Sanyal. It was a case of a usufructuary mortgage where the property was purported to be leased back at a rent equivalent to interest on the principal money payable at 11 annas per cent per annum. On a suit brought by the transferee of the mortgagors interest to redeem the mortgage the mortgages claimed payment by the plaintiff of Rs. 7942-13-0 on account of arrears of interest payable for the years 1289 to 1295 Fasli. The ratio of the decision was that their Lordships in the peculiar circumstances of the case, held that the lease money was interest on the principal money and, therefore, a charge on the mortgaged properties. Among the peculiar circumstances on which their Lordships relied was the fact that the lease rent was not determined by the value and capacity of the land purported to be leased, but as a variable amount calculated with reference to the amount of the principal money which might, from, time to time, remain unpaid. Bearing these circumstances in mind their Lordships observed:

"The lease money, qua lease money, was undoubtedly not a charge on the mortgaged property; but, qua interest it is a charge on the property, and the mortgagee is entitled to hold the property as security, not only for his principal mortgage money, but also for interest."

That is to say, ordinarily lease money is not "secured", and, therefore, is not mortgage money --Subramania Aiyer v. Panchanada Odayar, AIR 1932 Mad 175 [LQ/MadHC/1931/96] (K) was again, a case of a usufructuary mortgage where the property remained in the possession of the mortgagor. It was held by Ramesam J. that the mortgagee was deprived of his interest thereby and was entitled to claim damages in lieu of possession as long as the main claim for possession, was not barred. His Lordship remarked: "The damages the plaintiff sustains by the non-delivery of possession are merely interest". This was not a case of a failure to pay lease rent. Also, his Lordship distinguished from the case before him the case in which a mortgages is unwilling to take possession although the mortgagor was willing to deliver the property, and he conceded that in such circumstances the mortgagee might not be entitled to recover interest as secured by the transaction. In the same way here the bond makes a provision under which it was open to the mortgagee to recover the rent. Not having availed of it, it is doubtful whether he can recover it as being interest secured by the mortgage.

(16) My findings above dispose of the first point urged by Mr. Sanyal, namely, that the deposit made under Section 83 is insufficient. I come to the second point, that notice of the deposit was not validly served. The evidence of the serving peon Makhan Singh (P. W. 2) and the identifying witness Basudeo Singh (P. W. 7) is to the effect that the peon met the defendants and gave them the notices and that the defendants read the notices but refused to grant receipts therefor. Their evidence is supported by the service report (Ex. 1) which, as translated, says:

"I met with the men of the opposite party (musailalaih). Having come to know the contents of the notices of their respective names, received (li lia) their respective notices but refused to execute a receipt therefor in the presence of the witnesses."

The translation "the men of the opposite party" is somewhat misleading. "The members of the opposite party" would be more appropriate. In addition to the signature of Basudeo Singh the report is attested by two villagers Ghutan Rai and Rambahadur Thakur. There is no reason to distrust the evidence of the serving peon supported by his service report and the statement of Basdeo Singh. From the written statement itself it is clear that the plaintiffs had approached the defendants for redemption and there is no reason why the notices issued under Section 83 should be suppressed. Prom the evidence, therefore, we may take it that the peon, went to the village with the notices, that he met the defendants and made over the notices to the defendants, but they refused to sign an acknowledgment of receipt of the notices. Thereupon the peon made a note of the facts in his service return and got his report attested by some villagers.

(17) The contention of Mr. Sanyal is that this is not a sufficient compliance with the law and he relies upon Order 5, Rule 17, Civil P. C. which provides that where the defendant or his agent refused to sign the acknowledgment,

"the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report......" The main provision relating to service is contained in Rules 10 and 12 of Order 5 which require service of the summons to be made "by delivering or tendering a copy thereof signed by the Judge or such other officer as he appoints in this behalf and sealed with the seal of the Court"

on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent, is sufficient. Under Rule 15 service may, in certain circumstances, be made on an adult male member of the family of the defendant residing with him. Rule 15 is concerned with proof of service and directs the serving officer to require the signature of the person to whom the copy of the notice is delivered or tendered. Then comes Rule 17 which deals with the case where the defendant, his agent or other such person refuses to sign, or the serving officer is unable to find anybody on whom service can be made. Here there has been service within the meaning of Rules 10 and 12 of Order 5. The question is whether the notice must be taken not to have been duly served merely because the peon did not suspend a copy o[ the notice as required by Rule 17. The answer to this question is supplied by the decision in -- Nageshwar Bux v. Bisseswar Dayal, AIR 1924 Pat 443 [LQ/PatHC/1923/280] (L) where Jwala Prasad J. observed:

"The defendant by his conduct rendered it impossible to have the copies affixed on the house and he cannob be permitted to take advantage of his own wrong and to plead that the omission rendered the service invalid."

Foster J., in agreeing with Jwala Prasad J., observed :

"The alternative would have been that in anticipation of such contumacious conduct on the part of the defendant there should be sent out in every case a spare copy for affixing to the house and for complying with the provisions of Rule 17. That I do not think was ever intended to be a rule of procedure."

Jwala Prasad, A.C.J. delivered the leading judgment in -- Mahadeo Singh v. Basgit Singh, AIR 1925 Pat 441 [LQ/PatHC/1924/150] (M), on which reliance has been placed by Mr. Sanyal. The decision is not inconsistent With that in -- AIR 1924 Pat 446 [LQ/PatHC/1923/323] (L), which was distinguished by his Lordship on the ground that in that case the evidence was that the defendant, when served with notice and a copy of the plaint, retained the same and thus made it impossible for the peon to affix a copy on the door of his house as required by Rule 17. The same distinction was drawn by his Lordship in. --- Sudhansu Bhattacharyya v. Chairman, Patna City Municipality, AIR 1932 Pat 150 [LQ/PatHC/1931/14] (N). In -- Nathu Ram v. Salim Abdul Karim, AIR 1933 All 165 [LQ/AllHC/1932/155] (O), it is not clear whether the defendant retained the copy of the summons which was delivered to him. Even if it be so, the case is no authority in view of the decision of the Division Bench in the case of --AIR 1924 Pat 44S (L).For the reasons I have given I consider that the notice under Section 83 was validly served.The appeal fails and is dismissed with costs.